Kaur, R. v

A judge may continue a criminal trial in a defendant’s absence only by exercising the discretion with great caution and with close regard to the overall fairness of the proceedings. Involuntary illness or incapacity is a powerful reason against continuation, but it is not conclusive. The court must assess all the circumstances, including the trial’s progress, representation, the likely utility of an adjournment, the need for a retrial, protection against jury prejudice, and the competing prejudice to the prosecution.

An appellate court will intervene where the decision was clearly wrong, not reasonably open, or may have caused injustice. Where the defendant has substantially presented the defence and the judge fairly assesses the remaining prejudice, continuation may be proper.

The applicant was convicted at Wolverhampton Crown Court on 1 May 2012 of benefit-fraud offences, converting criminal property, and perverting the course of justice. She was sentenced on 5 October 2012 to 32 months’ imprisonment.

After giving evidence in chief and undergoing substantial cross-examination, the applicant became unable to attend because of anxiety, depression and suicidal thoughts. The trial judge accepted that her absence was involuntary but directed that the trial continue. The applicant appealed against conviction, relying also on a later psychiatric report, and sought leave to appeal against sentence.

The central issue was whether continuing the trial in her involuntary absence rendered the convictions unsafe.

1. Leave to appeal against conviction was granted, but the appeal was dismissed. Applying R v Anthony Jones [2002] 2 Cr.App.R 9, the court held that the trial judge had a discretion to continue a trial in a defendant’s absence. The discretion required great caution and a close assessment of overall fairness. Although involuntary illness ordinarily provides particularly strong grounds against continuation, fairness to the prosecution also mattered.

2. The judge’s decision was properly open to him. The applicant had fully challenged the prosecution witnesses, had given her account in evidence in chief, and had been cross-examined on most counts. She remained represented by competent counsel with full instructions. A short adjournment would not have helped, while discontinuance would have required a retrial of a substantial and nearly completed case.

3. The jury had been told that the applicant’s absence was for a good reason and must not be held against her. The judge was entitled to conclude that the Crown would be prejudiced if it could not complete cross-examination based on the documentary material. The inability to conduct possible re-examination did not make the trial unfair or the convictions unsafe.

4. The later psychiatric report was capable of belief and could not reasonably have been obtained at trial, but it did not materially add to the information already available to the judge. It therefore afforded no ground for allowing the appeal and did not need to be received as fresh evidence.

5. Leave to appeal against sentence was refused and the sentence application dismissed. The sentences reflected sustained, professional benefit fraud, additional offending for a friend, and an attempt to pervert the course of justice. There was no arguable basis for intervention.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was granted, but the appeal was dismissed. Leave to appeal against sentence was refused.

• Crown Court at Wolverhampton: The applicant was convicted on 1 May 2012 and sentenced on 5 October 2012 to 32 months’ imprisonment.